Coastal
Post Online
January,
2004
My Court, My Justice
By Edward W. Miller
"Though
justice be they plea, consider this, That in the course of justice, none of us
should see salvation; we do pray for
mercy, and that same prayer doth teach us all to render deeds of
mercy."
Shakespeare's MERCHANT OF
VENICE
Since the capture of Saddam on the 13th of
December, there has been a
maelstrom of opinion whirling in the media as to when and how and where this "tyrant" should be tried
for his supposed "horrendous
crimes."
Though Washington would like to convene
a special tribunal under our control, world opinion points in the
direction of a trial in Iraq by Saddam's
countrymen. There are choices.
On December 20th the GUARDIAN UNLIMITED
reported: "The statute establishing
the Iraqi Special Tribunal was approved by the Iraqi Governing Council and signed
into law on Dec. 10 by L. Paul
Bremer, the top US administrator in Iraq on behalf of the US-led Coalition
Provisional Authority." (Assoc. Press) The danger Washington faces is that
just as Milosevic, defending himself in the Hague, has managed to expose
the criminal behavior of the Reagan and
Bonn governments, so Saddam, when
tried, may open to public view the
equally criminal activity of the twin Bush and Clinton administrations
including their initial support of Saddam followed by their genocide of his
people.
Back in 1995, during the 50th anniversary
of the Nuremberg Trials, President Clinton publicly endorsed the creation of an
International Criminal Court (ICC). In 1998, in Rome, the foundation for such
an International Criminal Court was finally laid, and on the17th of July, 1998,
the Boston Globe reported that after a month of intense debate and after
"rebuffing US objections," United Nations delegates from 120
countries resoundingly approved a treaty establishing a permanent International
Criminal Court, in what was hailed
as
an historical step toward ending impunity for the world's most heinous crimes.
Key provisions in the Rome declaration
include the Court's power to prosecute individuals accused of genocide, war
crimes, crimes against humanity plus the Court's right to issue both arrest
warrants and summons to appear. The Court, which may accept referrals from the
UN Security Council, the Court's own independent prosecutor, and from a
country, may not exert a death penalty but may invoke life imprisonment. To be
situated in The Hague in the Netherlands, the Court will have 18 judges
overseen by representatives from countries accepting the treaty.
Ironically, after giving lip service to
such a Court for almost half a century, when the cards were on the table, the
US, fearing such a Court might diminish our so-called "sovereignty," insisted on watering down provisions
acceptable to other nationals. Amongst
such "safeguards," the United States can block the Court from
investigating any American simply by agreeing to conduct its own national
investigation. The authority of the Court's prosecutor is very narrowly
prescribed. Prosecutors must first gain approval from a panel of
internationally-selected judges with decisions too confined as to limit
"politically-motivated" charges. Other exceptions insisted upon by he
US and France undermine the Court's prestige: First, the Security Council may
delay a case for a year, and parties to its signature may exempt themselves
from jurisdiction for War Crimes for the first seven years of the Court's
existence.
During the 1998 protracted discussions in
Rome, US representative, Bill Richardson (then US ambassador to the UN) agreed the Court should target crimes
against humanity, war crimes, and genocide, but voiced a desire to protect US
soldiers serving abroad in peacekeeping operations: "They need to do their
jobs without exposure to politicized proceedings."
Responding to Richardson's apparent
concern, Phyllis Bennis, fellow at the Institute for Policy Studies, responded:
"The US is essentially trying to create an international court for
everyone except itself... The Pentagon claims they are against this treaty
because they have so many troops on humanitarian missions. In reality, US
troops are disproportionately absent from peacekeeping missions."
Richardson insisted the Court steer clear
of prosecuting individuals accused of waging national aggression. However, as
Professor of international law, Francis A. Boyle pointed out: "Contrary to
Richardson's baloney, the United States Government has legally and officially
recognized that waging a war of aggression has been an international crime since
the Nuremberg Charter of 1945."
Prof. Boyle added: "This principal of
international law was expressly incorporated in the United States Army Field
Manual 27-10 (1956)... as follows: "Any person, whether a member of the
armed forces or a civilian, who commits an act considered a crime under
international law is responsible therefore and liable to punishment."
Boyle also noted that the Customary Law of War is part of the law of the United
States and is binding upon all citizens of the United States.
Despite legal foot-dragging by the US, the
Rome Treaty was approved 120 to 7 with 21 abstentions, but had then to be
ratified by 60 countries for the Court to become a reality. China and Israel voted no with the US, while Russia,
Britain, Canada and Germany supported the Treaty.
In 1998, fallout from the Rome Conference
was not long in surfacing. Israel was immediately critical, foreseeing the
Court's future position on their illegal settlements, where, lacking the usual
US veto ,they would stand naked before International Law. Our then Senator Jesse Helms, always in step
with Israel and our isolationist Republicans, immediately announced he would
pull out all stops to prevent US Senate approval of this Court: "We must
slay this monster. Voting against the International Criminal Court is not
enough. The US should try to bring it down." (London Times, 1998)
Clinton in the last weeks of his presidency
seized the opportunity to lend US
credentials to this international organization though Republicans in Congress
immediately vowed they will never
ratify, and with a Republican majority
still in Washington , approval in the near future is unlikely. As THE
ECONOMIST had noted: "America has
often attached extensive reservations, to make (treaties) inapplicable at home.
It has paid scant attention to the1947-established International Court of
Justice in The Hague" ...a Court the US
conveniently ignored after Washington was convicted of mining the harbors
in Nicaragua.
The US had also argued against a foreign
court trial of Chile's Pinochet, but found it easy in 1993 to set up, in an empty room in the Hague (donated by
the INTERNATIONAL RED CROSS), its own
pseudo-International Tribunal to indict
and try its own personally-designated "war criminal," Yugoslavia's
Slobovan Milosevic.
This US-organized Hague Tribunal, though presented with substantial evidence by a
group of international lawyers,
refused
to indict NATO for its criminal destruction of Yugoslavia or even put on trial
those Balkan murderers who had been under US hire. As international lawyer
Christopher Black and writer Edward S. Herman pointed out (Z-Magazine,
Feb. 2000), on May 27,1993 in the midst
of the 78-day bombing of Yugoslavia, the US "International Criminal
Tribunal's chief prosecutor, Louise Arbour, announced the indictment of Serb
president Slobovan Milosevic and four associates for war crimes, as a
"public relations coup to justify the NATO policies and help permit the
bombing to continue. This pseudo-International
Court was convened to serve the
Balkan policy ends of its dominant members, especially the United States."
NATO immediately assumed authority over the Tribunal, claiming "we will
make a decision on whether Yugoslav actions against ethnic Albanians constitute
genocide."
As an example of the Tribunal's bias, when
a 150 page report on Croatian president Trudjman's violent expulsion of 200,000
Serbs from Krajina in August 1995 was presented to the Tribunal, the US which
supported this ethnic cleansing, refused to supply information and even
defended the Croats. Result: no indictment from the Tribunal was even considered.
As distinguished Yugoslavian law scholar
Doctor Kosta Cavoski pointed out, the UN Security Council never had the
authority to convene such an International Tribunal. Thus, their Resolution 827
of May 1993 was illegal. Indeed, UN Secretary-General Kofi Annan, unable to
find any legal basis for this US invention, settled on the statement that:
"This approach would have the advantage of being expeditious and
immediately effective." Doctor
Cavoski noted: "...Political expedience took precedence over
legality." Unlike any other court,
this pseudo-Tribunal by-passes legislative control to write its own laws.
Pittsburgh's law professor Robert M. Hayden
noted: In order to pursue the West's political goals in the Balkans, "this
Tribunal's rules-some of which resemble those of the Spanish Inquisition-make
it difficult for defendants to receive a fair trial."
Writer Christine Stone observed: "The
system is weighted in favor of the prosecution... witnesses are attacked on
ideological grounds... and anyone who calls into question the policies of the
leading NATO states is denounced and hectored as "extremist."
Anonymous witnesses and secret testimony are permitted.
Washington's concern over an International
Tribunal is understandable. US genocide's in Laos and Cambodia, our invasions
of Grenada and Panama, plus our bombings of Libya's Tripoli and Benghazi were
all war crimes, as was the Allies' massive massacre of thousands fleeing north
from Basra in the first Gulf War,
followed by our genocidal, 12 year embargo during which almost 2 million
Iraqis, the elderly and children died. Yet to be added: our savage 78-day
bombing of Yugoslavia.
Washington's worries are not unreal. On
March of 1999 in Toronto, 40 Canadian citizens attempted a citizens arrest
of Henry Kissinger, our native
arch-criminal. Holding aloft a blood-stained banner reading: "Remember
Kissinger's Crimes: Cambodia, Laos, Iran, Kurds, Vietnam, Chile, Greece,
Argentina, East Timor, Brazil, Apartheid," the group, pleaded with the Toronto police to arrest
Kissinger. The citizen protesters,
however, were charged with trespassing
and "attempting citizens arrest."
In court, two were found not guilty, and two, convicted and given one year's probation by a Justice of the
Peace who insulted the defendants, questioned their competence, and even stated that "evidence of war crimes was
irrelevant."
As for the ICC, by 26 February 2003 there
were 139 signatories as well as 89 states who conceded to the Rome Statues, 18 judges had been approved and on April 23rd, Luis Moreno Ocampo from
Argentina was elected Chief Prosecutor.
Washington has long ignored tribunals it couldn't control, has created am illegal tribunal for purely
political purposes and may try to destroy any tribunal which threatens its hegemony.
The conscience of the world spoke in Rome. Whether this still small voice will
gain the requisite support from a war-weary world, time alone will tell.